Twentieth Century Fox and others v British Telecommunications plc  EWHC 1981 (Ch)
In a judgment handed down today, the High Court decided to issue an injunction ordering BT to utilise adopt specified technology, such as its 'Cleanfeed' system, to block access to the Newzbin2 website. The judge held that he could grant such an injunction because BT's service was being used to infringe copyright by both Newzbin2 and its end users, and that actual knowledge by an ISP of general infringement, rather than knowledge by an of specific individual infringements, was all that was required for the court to have jurisdiction to grant and injunction.
The Newzbin website had been found in a previous case (Twentieth Century Fox Film Corp v Newzbin Ltd  EWHC 608 (Ch)) to infringe on a large scale the copyright in films owned by various major studios, who were the applicants in this case. Following the injunction issued in that case, the original Newzbin company ceased to trade, but a virtually identical website, Newzbin 2, opened shortly afterwards. As this was based offshore and run by unidentified individuals, the studios were unable to proceed directly against the new site, so instead brought this action against BT, seeking to block access to Newzbin
Arnold J held that there was jurisdiction to grant an injunction under section 97A of the Copyright Designs and Patents Act 1988. This section, which was inserted in 2003 as part of the implementation into UK law of the EU Information Society Directive (ISD), gives the High Court the power to grant an injunction against a service provider, " where that service provider has actual knowledge of another person using their service to infringe copyright." BT accepted that it is a "service provider", but disputed that the other requirements of the provision were satisfied. In summary, the judge found that each of these requirements had been met:
- BT's service had been used to infringe copyright. This was true of both the end users and the operators of Newzbin2. This issue depended on the meaning of the corresponding provision in the ISD, Article 8(3). The ECJ in LSG v Tele2 ( ECR I-1227) held that an ISP was an "intermediary" within that provision even though it only provided Internet access and did not offer any other service. The end users, in downloading illegal film copies, were using BT's service to infringe copyright. The operators also used BT's services to infringe copyright in these films.
- BT had actual knowledge. This requirement did not mean that BT had to have knowledge of every individual infringement before the section 97A applied. The purpose of Article 8(3), and hence of section 97A, was to enable an injunction against the person best placed to bring the infringing activities to an end, the service provider. This purpose was best carried out by requiring that the service provider be shown to have actual knowledge that persons were using its service to infringe copyright, but proof of actual knowledge of a specific infringement was not required.
The second issue was whether the court should in its discretion grant an injunction, and the scope of any injunction to be granted, whether it could be broad or limited only to the particular infringements of which the service provider had knowledge. After the hearing of this case, but before judgment was handed down, the ECJ gave its opinion in L'Oreal v eBay This showed that the court was not limited to preventing the continuance of known infringements but could include measures which contribute to preventing further infringements of the same kind, so the broader injunction sought here could be granted.
This case does not mean that ISPs are now liable to be forced to block all illegal content transmitted using their service, as the judge makes clear at the end of his judgment. First, this case was specifically directed towards blocking a site that had already been held by the High Court to mainly provide material which infringed copyright. Second, BT already had the technology to block access to the site; the injunction sought at the hearing was expressly limited to the use of certain available technology and it was clear that BT was not required to individually monitor the contents of each Internet package. BT's argument that the injunction would be ineffective because users could circumvent the blocking, failed; the Judge believed that most users would not have the expertise to do so or be prepared to pay the additional costs involved, and circumvention measures were liable to lead to poorer quality and slower downloads.